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THE NATIONAL INSURANCE COMPANY LIMITED V/S ASHA PACHAURI & ANOTHER, decided on Thursday, October 16, 2014.
[ In the High Court Of Judicature At Allahabad Lucknow Bench, First Appeal from Order No. 1337 of 2010. ] 16/10/2014
Judge(s) : VISHNU CHANDRA GUPTA
Advocate(s) : UPS. Kushwaha. Shakeel Ahmad Ansari.
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  "2014 (4) LLN 594"  ==   ""  







        Vishnu Chandra Gupta J.This appeal under Section 30 of the Employee's Compensation Act 1923 (hereinafter referred to as 'the EC Act') has been filed against the judgment and award dated 22.09.2010 passed by Workman Compensation Commissioner and Deputy Labour Commissioner Lucknow Region Lucknow (hereinafter referred to as 'the Commissioner') in WCP No.33 of 2008 whereby the Commissioner has awarded compensation of Rs.3 98 800/- to the claimant Smt. Asha Pachauri on account of death of his son Praveen Pachauri who died in a mother accident occurred on 18.08.2008 at about 5:30 a.m. when the deceased was driving auto rickshaw under the employment of respondent no.2 Neeraj Pachauri the bother of the deceased.The brief facts for deciding this first appeal from order are that respondent no.2 Neeraj Pachauri owned an auto rickshaw having Registration No.UP 32-BN 7074. According to him the auto rickshaw was driven by him in day time and the same was given to the deceased to be driven in between 7:00 p.m. to 8:30 a.m. on payment of Rs.4000/- per month. The deceased was unmarried. The claimant Smt. Asha Pachauri who is the mother of the deceased Praveen Pachauri was dependant upon the income of the deceased. Respondent no.2 Neeraj Pachauri used to reside separately with his mother. On 18.08.2008 at about 5:30 p.m. when the deceased after taking the passengers from PGI to Charbagh on the auto rickshaw met an accident with an unidentified vehicle near supply depot. Consequently a fire broken in the front portion of the auto rickshaw. In this incident the deceased Praveen Pachauri received serious burn injuries and died on the spot along with one passenger of the auto rickshaw who belongs to Bareilly. In the said accident all the documents relating to auto rickshaw and the driving license of the deceased along with cash were burnt. A first information report of the said accident was also lodged on the same day by Neeraj Pachauri. The postmortem examination of the deceased was conducted in Lucknow Medical College. The auto rickshaw was admittedly insured on the date of accident with the appellant Insurance Company. The date of birth of Praveen Pachauri was 07.08.1974 and as such his aged at the time of accident was 34 years.The owner of the auto rickshaw moved an application to the Insurance Company for granting compensation but the appellant Insurance Company vide its letter dated 17.10.2008 informed that as Praveen Pachauri died during the course of his employment therefore he may approach to the Commissioner under the provisions of Worksman Compensation Act. Smt. Asha Pachauri moved for compensation to Commissioner where on the basis of structured formula an amount of Rs.3 98 800/- has been awarded as compensation in favour of Smt. Asha Pachauri the mother of the deceased.The petition was contested by the owner of the vehicle admitting the contents in the petition and stated that the vehicle in question was duly insured with the appellant Insurance Company at the time of accident and the same was being driven by the deceased driver having valid driving license in the course of his employment therefore the Insurance Company is bound to pay compensation as claimed by the claimant in terms of the policy.The Insurance Company also filed written statement alleging therein that the story of the alleged employment of the deceased is a cooked up story. There is no contract at all in between the deceased and the respondent no.2 Neeraj Pachauri. It is a case of hit and run. The driver was not having valid driving license and disowned his liability to pay the compensation.The claimant Smt. Asha Pachauri examined herself as PW 1 and the owner of the vehicle in question was also examined as OPW 1. Apart from it the claimant filed certified copies of site plan inquest report of the deceased dated 18.08.2008 first information report postmortem examination report and Accidentt/ Technical Examination report of auto rickshaw.The Insurance Company also filed the report of his investigator wherein the permit of the vehicle was found valid for Lucknow city area on the date of accident. The Insurance Company also filed the policy of insurance. Apart from it the driving license of the deceased Praveen Pachauri was also filed which was valid for driving the transport vehicle from 12.05.2006 to 11.05.2009.The Tribunal after considering material evidence available on record found that deceased Praveen Pachauri died in an accident occurred on the given date time and place when he was under the employment of Neeraj Pachauri as a driver and awarded compensation as claimed.Aggrieved by the aforesaid award the present first appeal from order has been filed by the Insurance Company.I have heard Sri UPS Kushwaha learned counsel for the appellant Insurance Company and Sri Shakeel Ahmad Ansari learned counsel for the respondent claimant and perused the record of the first appeal as well as record of the Tribunal.Learned counsel for the appellant Insurance Company has challenged the impugned judgment and award on the following grounds:(i). that; there is no relationship between the employer and the employee. In support of this contention learned counsel for the appellant relied upon the judgment of the Calcutta High Court in the case of Manderbhani Colliery Vs. Phulwanti Devi; 1999 ILLJ 937 (Calcutta).(ii). that; the evidence given in the form of affidavit is not in consonance with the provisions contained in Section 25 of the EC Act read with Rule 41 of the Workmen's Compensation Rules 1924 (in short 'the WC Rules'). In support his contention he relied upon the judgment of this Court in the case of Kripal Singh Vs. Mst. Kalia and others: 1982 ACJ 458.(iii). that; in this case the death of deceased Praveen Pachauri was occurred in the motor accident has not been established.Learned counsel for the respondent claimant relying upon the judgment of the Apex Court in the case of T.S. Shylaja (Smt.) Vs. Oriental Insurance Company and another; 2014 (1) TAC 381 (SC) submitted that the facts of this case is almost similar to the present first appeal. The deceased driver was the brother of the owner of vehicle in the said case also and there was no written agreement in between owner and the driver regarding employment. In the said case the owner of the vehicle in question examined himself before the Tribunal and stated that the deceased was his younger brother who was working as a paid driver under his employment and he was paying salary. The statement given by the owner was not only accepted by the Commissioner but also by the Apex Court by setting aside the judgment of the High Court.It has been submitted by learned counsel for the respondent that in the present case no doubt the evidence has been given in the form of examination-in-chief by way of affidavit but ample opportunity of cross-examination was given to the Insurance Company and lengthy cross- examination has been conducted with the claimant as well as the owner of the vehicle therefore it cannot be said that any prejudice has been caused to the appellant. If there is any irregularity in the procedure the entire proceedings cannot be set at naught unless the person aggrieved demonstrate before the court that substantial injustice and prejudice has been caused to the other party. Therefore mere irregularity in taking the evidence in the form of examination-in-chief by way of an affidavit would not vitiate the proceedings. In support of his contention he relied upon the judgment of a Division Bench of this Court in FAFO No.756 of 2012 The Oriental Insurance Company Limited Vs. Ram Ratan and others decided on 24.08.2012.It has further been submitted that so far as the proof of death of the deceased in the motor accident is concerned it is true that neither the claimant nor the owner of the vehicle was present on the spot at the time of accident but they visited the spot after the accident. The documents produced on record in the form of first information report site plan and inquest report leave no room to doubt that the deceased was died in the accident occurred on the given date time and place. Moreover in the written statement filed by the Insurance Company before the Commissioner it has not been stated that no accident has occurred in which Praveen Pachauri died rather the document available on record in form of letter written by the Insurance Company to the owner of the vehicle in question wherein the Insurance Company advised to file petition under the provisions of Workmen's Compensation Act.The present first appeal was admitted on the following substantial questions of law:(I) Whether the judgment and order dated 22.09.2010 are without jurisdiction as there was no relationship of employer and employee between opposite party no.2 Neeraj Pachauri and deceased Praveen Pachauri?(II) Whether learned WC Commissioner Lucknow erred in Law in treating the affidavits of Smt. Asha Pachauri and Neeraj Pachauri as affidavits and in giving findings and passing award on the basis of such inadmissible evidence?(III) Whether learned WC Commissioner committed error in Law in passing the award even though Neeraj Pachauri owner of auto rickshaw No.UP 32NB 7074 was not holding any permit on the date of accident for plying the auto rickshaw No.UP 32 BN 7074 on PGI-KKC route?So far as the argument of Insurance Company relating to proof of death of Praveen Pachauri on the given date time and place in alleged motor accident is concerned it would suffice to say that while admitting the appeal this question of fact has not been disputed and only the appeal was admitted on aforesaid three issues. Moreover the correctness of the certified copies of documents filed by the claimant respondent has not been challenged. The claimant has filed the copies of the first information report lodged by Neeraj Pachauri the inquest report prepared on the spot by the police after about 2 hours of the accident site plan prepared by the police on the spot and the postmortem examination report indicating the nature of injuries sustained by the deceased. If all aforesaid documents taken together they will be sufficient to establish that Praveen Pachauri died in an accident as alleged by the claimant.Moreover the factum of accident and death of Praveen Pachauri in such accident has not been disputed in the written statement filed by the Insurance Company before Commissioner nor such plea was taken before the Commissioner as is evident from the written submission filed by the Insurance Company. Apart from it when the owner of the vehicle wrote a letter informing about the accident and awarding compensation to his paid driver the Insurance Company did not dispute the death of Praveen Pachauri in the accident but simply stated that legal heirs may approach for compensation before the Commissioner under the provisions of WC Act which is evident from the letter filed by the owner and correctness of which has not been disputed by the Insurance Company.In his written statement in para 23 it has categorically been stated that as per the first information report the alleged accident is a case of hit and run and therefore the same is not maintainable under the EC Act which clearly indicates that insurance company has not disputed the accident as well as the death of Praveen Pachauri due to involvement of motor vehicle. Consequently I do not find any force in the submission of learned counsel for the appellant.Substantial Question No.1On this issue the owner of the vehicle Neeraj Pachauri examined himself and lengthy cross examination was made by the Insurance Company. It is true that there is no written agreement regarding the employment of deceased is in existence but it should be kept in mind that for maintaining petition under EC Act there is no legal requirement that agreement in between employer and employee should be in writing. Even a casual labour if works under the instructions of the employer sustained some injury or died during the course of his employment the employer could not be escaped from its liability under EC Act on the ground that there was no written agreement in between employer and employee. On the basis of the statement given by Neeraj Pachauri wherein he categorically stated that his brother was his paid driver and he used to pay the salary of Rs.4000/- per month the relationship between the deceased and Neeraj Pachauri cannot be disbelieved. It makes no difference that employer and employee are the real brothers. There is no proposition of law that relationship between employer and employee cannot exist in close relation. I fortified my view with the judgment of the Apex Court in the case of T.S. Shylaja (supra) in which most of the facts are identical with the present case. There is no reason to disbelieve the statement of Neeraj Pachauri. On this issue learned Commissioner has rightly appreciated the evidence and found that relationship of employer and employee exists in between the deceased and Neeraj Pachauri the owner of the vehicle in question. This finding of fact cannot be said to be perverse. Hence this Court is not inclined to interfere with the finding of fact recorded by the Commissioner on this issue.Substantial Question No.2It is true that Section 25 of EC Act provides that Commissioner shall make a brief memorandum of the substance of the evidence of every witness. Section 25 of EC Act is extracted below for ready reference:25. Method of recording evidence. - The Commissioner shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds and such memorandum shall be written and signed by the Commissioner with his own hand and shall form part of the record:Provided that if the Commissioner is prevented from making such memorandum he shall record the reason of his inability to do so and shall cause such memorandum to be made in writing from his dictation and shall sign the same and such memorandum shall form part of the record:Provided further that the evidence of any medical witness shall be taken down as nearly as may be word of word.Rule 41 of the WC Rules contains the provisions of Code of Civil Procedure 1908 (in short 'the C.P.C.) which are applicable to the proceedings under the EC Act pending before the Commissioner. Rule 41 of the WC Rules is extracted below for ready reference:41. Certain provisions of Code of Civil Procedure 1908 to apply. - Save as otherwise expressly provided in the Act or these Rules the following provisions of the First Schedule to the Code of Civil Procedure 1908 namely those contained in Order V Rules 9 to 13 and 15 to 30; Order IX; Order XIII Rules 3 to 10; Order XVI Rules 2 to 21; Order XVII; and Order XXIII Rules 1 and 2 shall apply to proceedings before Commissioners in so far as they may be applicable thereto:Provided that –(a) for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adopt them to the matter before him;(b) the Commissioner may for sufficient reasons proceed otherwise than in accordance with the said provisions if he is satisfied that the interests of the parties will not thereby be prejudiced.A combine reading of Section 25 and Rule 41 reveals that Order XIX of the CPC is not applicable to the proceedings before the Commissioner. The controversy relates to the procedure to be adopted by the Commissioner. Admittedly the proceedings before the Commissioner are not regular proceedings like a suit they are summary in nature. Rule 25 clearly speaks that the proceeding before the Commissioner is an inquiry. It is well settled that law of procedure is hand made and cannot be used as a tool to cut the way of advancing justice but to be used as helping hand to do justice in between the parties after adhering the basic principle of natural justice. While doing so if any authority observed the basic rule of procedure based on principles of natural justice that in that event unless a substantial injustice is caused or serious prejudice has been shown to be caused to the party aggrieved by deviation in procedure the proceedings cannot set at naught. The similar view has been propounded by this Court in Ram Ratan's case (supra). The relevant paras 28 29 30 31 and 32 of Ram Ratan's case (supra) are reproduced hreinunder:28. Coming to second limb of argument. It is vehemently argued by the appellant's counsel that the claimant has filed an affidavit in response to which he has been examined orally by the defendant's counsel. In absence of examination-in-chief proceeding vitiates. Specific query was made by the court whether the appellant or the respondents had raised objections and took a plea that the tribunal should record examination-in-chief the response is negative. Neither in the memo of appeal nor during the course of argument it has been pleaded or stated that the objection was raised during the proceeding against the filing of affidavit by the claimant. Once the appellant participated in the proceeding and raised no objection; rather cross-examined the prosecution witnesses including the claimant based on facts brought on record by affidavit then at first appellate stage such argument is not sustainable keeping in view the letter and spirit of Section 168 of the Act. Learned counsel for the appellant has invited attention to different provisions contained in Chapter IXX of the Motor Vehicles Rules 1998. It shall be appropriate to consider the provisions regulating the trial before the tribunal.29. Rule 204 of 1998 Rules provides that an application under Section 166 of the Act shall be moved as far as possible in Form SR-49 to a petition under Section 166 of the Act. Rule 205 provides that an applicant shall be examined personally on oath if the applicant is present personally and such examination shall be reduced to writing. Discretion has been given to the tribunal to examine personally on oath and that too in case the applicant is present personally. Otherwise the tribunal may proceed on the basis of application moved in the required format and for the reasons to be recorded under Rule 206 the tribunal can dismiss summarily in case there is no sufficient ground to proceed therewith.30. Notices are to be given under Rule 207. Appearance and oral examination of the parties framing of issues summoning of witnesses determination of issues and method of recording evidence are provided under Rules 208 209 210 211 and 212 which are reproduced as under:208. Appearance and oral examination of parties. (1) The owner of the motor vehicle and the insurer may at or before the first hearing or within such further time as the Claims Tribunal may allow file a written statement dealing with the claim raised in the application and any such written statement shall form part of the record.(2) Where the claim is contested the Claims Tribunal shall with a view to elucidating matters in controversy between the parties examine orally such of the parties to the claim proceeding as it deems fit and shall reduce the substance of the examination if any to writing.209. Framing of issues.- After considering the application and the written statements and oral statements of the parties the Claims Tribunal shall proceed to frame the issues on which the right decision of the claim appears to it to depend.210. Summoning of witnesses. - Where an application is presented by any party to the proceeding for summoning of witnesses the Claims Tribunal shall on payment of the expenses involved if any issue summons for the appearance of such witnesses unless it considers that their appearance is not necessary for a just decision of the case.211. Determination of issues. After framing the issues the Claims Tribunal shall proceed to record evidence thereon which each party may like to produce.212. Method of recording evidence.- The Claims Tribunal shall as examination of a party or a witness proceeds make a brief memorandum of the substance of what is deposed and such memorandum shall be written and signed by the Claims Tribunal and shall form apart of the record:Provided that the evidence of any medical witness shall as nearly as may be be taken down word for word :Provided further that where the claims tribunal is unable to make a memorandum it shall cause the reason of such inability to be recorded and shall cause the memorandum to be made in writing from its dictation.31. A plain reading of the aforesaid provision reveals that under Rule 208 when the parties put in appearance then with a view to elucidating matters the tribunal in case deems fit may examine orally the parties of the claim petition and reduce the substance of the examination to writing. Under Rule 212 the tribunal shall make a brief memorandum of the substance of what is deposed and such memorandum shall be written and signed by the Claims Tribunal.32. A plain reading of these provisions reveals that discretion has been given to the tribunal to proceed with oral examination of the witnesses. The provisions contained in Rules 208 to 212 should be real in context to the word enquiry used in Section 168 of the Act. Being summary trial discretion has been given to the Presiding Officer of the tribunal to record oral testimony under Rule 208 by using word if deems fit. However discretion being judicious in nature in case an objection is raised to the affidavit filed by a person then it shall be incumbent on the tribunal to record examination-in-chief with due permission to cross-examine such witnesses. In any case if without raising any objection an affidavit is relied upon by the parties and the defendant cross-examines the applicant during the course of proceeding before the tribunal then no objection may be raised at appellate stage and trial shall not vitiate. During the course of argument it has been admitted that no objection was raised by the appellant before the tribunal when the tribunal has relied upon the affidavit filed by the claimant and permitted the appellant to cross-examine a witness. Moreover it was open for the appellant while filing written statement to raise objection by due pleading but the same admittedly has not been done.The judgment of Kripal Singh's case (supra) relied upon by learned counsel for the appellant cannot be applied in the present case because from perusal of judgment it appears that before the Commissioner on the date of hearing the claimant was present but the owner and the Insurance Company were absent. The Tribunal proceeded ex-parte and directed the appellant claimant to give evidence by filing affidavit. The application for setting aside the ex-parte order was made on behalf of the owner and the Insurance Company on that day but the same was rejected by the Tribunal and proceeded to decide the case on the basis of such affidavit. The Court ruled that Tribunal is not empowered to permit evidence by means of affidavit or to give award on the basis of affidavit or to give award on the basis of evidence contained in the affidavit as it is authorized to do so under Order XIX of the CPC which is not applicable to Motor Vehicles Act. Therefore the Tribunal has no power to permit evidence by means of an affidavit. The Tribunal committed error in admitting the evidence by means of affidavit and delivering the award on the basis of those affidavits alone. The High Court held that the procedure adopted by the Tribunal was wrong.It is true that the affidavit in the form of evidence provided under Order XVIII Rule 4 of the CPC as examination-in-chief was taken but opportunity of cross-examination has been provided to the owner as well as the Insurance Company and the appellant Insurance Company extensively cross-examined the witnesses produced before the Commissioner by respondents. This procedure of filing affidavit as examination-in-chief and permitting cross examination with the witnesses on the basis of affidavit filed as examination-in-chief then haw any prejudice may be caused to the opposite party who cross examined the witness. This Court is of the firm view that no substantial injustice has been caused to the Insurance Company nor any prejudice shown to have been caused by adopting this procedure by the Commissioner therefore I am of the view that the finding recorded by the Commissioner cannot be set aside nor proceedings could be vitiated.Substantial Question No.3This question relates to have a valid permit on the date of accident by the owner of the vehicle. It is not the case either of the Insurance Company or of the owner that vehicle was not having a valid permit. Both admit that the permit was of city area of Lucknow. Learned counsel appearing for Insurance Company has submitted that PGI is not falling within the city area of Lucknow. This fact has been denied by the owner as is evident from the cross-examination conducted by the Insurance Company.It is well settled principle of law that when Insurance Company pleaded a breach of term of the policy the burden lies on it to establish the breach. The Insurance Company in this case did not adduce any evidence on this score. No notification disclosing that PGI is not falling within the area of Lucknow City has been brought on record nor any other oral or documentary evidence has been adduced. Therefore in the absence of any such evidence the Insurance Company could not succeed in establishing the breach of the term of the policy.In view of above I do not find any merit in the appeal and the same is dismissed with cost quantified at Rs.15 000/- (rupees fifteen thousand only).Record of the Tribunal be sent back expeditiously along with this order. It has been informed by learned counsel for the appellant that during the pendency of this appeal the awarded amount of Rs.3 98 800/- has been deposited out of which a sum of Rs.1 00 000/- has already been paid to the claimant.The amount deposited by the Insurance Company is released in favour of the claimant to be paid to her in terms of the award without any further delay.